On September 22, 2006, Riste Bosevski was working as a labourer employed by Professional Contracting Pty Ltd on a school site in the regional New South Wales town of Cringila which was being operated by a company known as Avopiling Pty Ltd.
At the same time, two Avopiling workers were erecting a mast on a pile driving rig when an auxiliary cable snapped. This caused around 25 kilograms’ worth of metal objects to be released from the cathead and fall to the ground. Bosevski, who was standing within the vicinity of the rig, was struck by some of these. He suffered injuries to his head, neck and chest.
Bosevski commenced proceedings for negligence against Avopiling under the Civil Liability Act 2002 (NSW).
In its defence, Avopiling claimed contributory negligence. It alleged that any liability it had to Bosevski should be reduced on account of negligence from Professional Contracting as Bosevski’s employer and from Bosevski himself. Bosevski, it said, should not have been in the vicinity of the rig whilst it was being erected. Nor should his employer have allowed him to be.
This failed and Bosevski was awarded damages of just over $2,632 million, including interest and compensation. The trial judge found there had been a reasonable risk of harm. A reasonable party in Avopiling’s position, he found, would have ensured sufficient slack in the auxiliary cable prior to or when erecting the mast of the pile driving rig and would have continuously observed the cables.
As for Bosevski’s own employer in Professional Contracting, the trial judge held that they were not contributorily negligent – a decision upheld on appeal. Both Bosevski and his supervisor, the court found, were acting reasonably within their duties by being within the vicinity of the pile driving rig when it was being erected. Moreover, the primary judge found that Professional Contracting as Bosevski’s employer could not reasonably have known about the risk of the cable snapping.
For similar reasons, Bosevski himself was found not to have contributed to his own injuries.
This case raises questions about whether employers on construction sites can be partially liable for damages associated with negligence where their workers are injured by the actions of others. This is particularly relevant on building sites where multiple trades are on site simultaneously.
Naturally, employees throughout Australia who are injured at work can access statutory workers compensation schemes. These provide payments for medical and rehabilitation costs, replacement of lost wages whilst off work and, in some cases, a lump sum for permanent impairment.
Often with serious injuries, however, workers may also be able to sue for common law damages and claim for future economic losses. In some states such as Victoria, they may also be able to receive damages for pain and suffering.
As shown above, damages can rise into the millions.
Speaking particularly about NSW, where the primary legislation in respect of negligence is Civil Liberties Act 2002 (NSW), Iona Shajadi, Senior Associate at law firm HBA Legal, said employers have a duty of care to take reasonable action to eliminate any hazards or dangers to either their own workers or to workers employed by others.
Indeed, in confusing wording, Section 5B of that Act says that a person is not negligent in failing to take precautions against a risk of harm to others or themselves unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); (b) the risk was not insignificant; and (c) in the circumstances, a reasonable person in the person’s position would have taken those precautions.
In simpler terms, this means any party can be held liable for injury caused to others where they knew or ought to have known that there was a risk of injury and failed to take reasonable precautions.
For employers whose own workers are injured by others, they themselves can be held partially liable where they themselves (the employer) know of a risk and fail to take reasonable action.
In the Avopiling case, Shajadi says the critical issues bore down to knowledge and what each party should reasonably have known about the risks involved. Because Professional Contracting could not have known about the risk, they were not responsible for Bosevski injuries despite being his employer. Bosevski himself, meanwhile, could not reasonably have known about the danger and was not contributorily negligent to his own injuries.
An interesting issue arises where workers are employed via labour hire. Where this happens, the labour hire company is the direct employer of their workers but does not control what happens on site.
In some recent cases, labour hire companies have escaped liability where hazards which caused accidents have been deemed not to be foreseeable by them.
In the 2015 case of Wormleaton V Thomas & Coffee Limited, labour hire company Allstate Pty Ltd was held not to share in liability where one of its staff lost his right leg as a sinter cooler beam which he and other dogmen had been rigging fell toward him and pinned his leg to the ground whilst he had been working on the dismantling and relocation of the cooler. In that case, the problem was not that the safety system on site was not adequate but rather that those safety arrangements in place were not followed – a situation the labour hire company could not have reasonably foreseen even where it had inspected the site beforehand.
In another case last year, labour hire company Caringbah Formwork was found not to be contributorily negligent for injury suffered by its worker Milan Kabic as a result of Kabic having fallen two meters from a raised wooden platform on a metal frame. Kabic’s accident, the court found, was specific to a time and place. Regular inspections by the labour hire company would not have revealed any problems.
In Wormleaton case, both the host employer and the principal contractor on site were found to be negligent. In Kabic’s case, the host employer was found negligent whilst Kabic himself was found to be contributorily negligent.
In other cases, however, labour hire companies have been held contributorily negligent.
In a well-known case in 2003 (TNT v Christie), labour hire firm Manpower Services was held contributorily responsible for an injury suffered by one of its workers whilst using a pallet jack on the premises of TNT Australia. In that case, the court found that Manpower had a non-delegable duty of care as well as TNT. It had breached this by failing to adequately instruct its employee, failing to provide proper assistance and failing to adequately inspect, maintain and provide appropriate equipment. It was forced to pay 25 percent of the damages claim.
Shajadi says labour hire companies have a duty of care and can be held contributorily negligent where any breach of this contributes to injuries. This duties include inspecting the site and undertaking a risk assessment, understanding the activities which workers will be performing, making sure workers selected for each role have the knowledge and experience to perform the task safely (and/or providing training) and ensuring that workers are provided with suitable plant and equipment.
Were a labour hire company to send a worker to pick or pack boxes with no training in manual handling, for example, they could be held liable if that worker is injured. Ditto where a tool they supply to a carpenter on their books is defective and causes an accident.
To manage their risks (and to keep their workers safe), Shajadi says employers (including labour hire companies) should take several steps.
First, it is important to conduct a risk assessment of potential hazards on site. This will mean employers have documentary evidence of having assessed and considered relevant dangers should something go wrong.
Next, training and job matching are critical. Employers must ensure that anybody who goes to a site is qualified and trained to perform their role safety.
Finally, there should be a person on site to whom workers can report safety concerns (e.g. a foreperson) and a process through which this can be done.
With sensible steps, employers can minimise their risk of being liable for injuries incurred by their workers on site.
Better yet, they can reduce the likelihood of injuries and can help to ensure that both their own employees and others on site return home safely.